The Director of National Intelligence and President Obama are fighting to keep the Senate from getting access to a list of FISA warrantless wiretap uses. They claim it would be "impossible" to generate such a list -- in other words, arguing transparency with respect to domestic spying is impossible. (Source: Joost)

Meanwhile Democratic Senator Dianne Feinstein (Calif.) is pushing for the renewal of the FISA Amendments Act -- a bill pushed by and passed into law by former President George W. Bush (R) in 2008. (Source: BoingBoing)

The bill grants immunity from lawsuits to cooperating telecoms, preventing them from potentially admitting to abuses of illegal warrantless surveillance of Americans. (Source: Reuters)

Some Senators are upset about efforts to stifle Senate review of FISA actions

During the terrorists attacks of September 11, 2001, much was lost by the people of the United States, including the lives of loved ones. Perhaps the most precious treasures lost, though, were the freedoms that Americans once took for granted. Today Americans have to endure invasive "enhanced searches" of their genital regions by Transportation Safety Administration agents and can be spied on over the phone -- without warrant -- thanks to the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA).

I. FAA Re-Up Leaves Door Open to New Abuses

The latter "Big Brother" legislation is slated to expire in 2012. And at a time when most expect them to be trying to negotiate a debt ceiling compromise, a group of Senators are believed to be debating something quite different. The Senate Select Committee on Intelligence is reportedly meeting behind closed doors. And reports indicate the topic of discussion is the renewal of the FISA Amendments.

Both the FISA and the FAA ostensibly subvert the protections provided by the Fourth Amendment of the U.S. Constitution, both directly and indirectly. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Generally courts have agreed that wiretapping was a violation of the protection against "unreasonable" searches.

However, in the FISA's case, the scenario was a bit murkier as it officially only allowed the warrantless spying on American citizens in cases where they were believed to be foreign spies (later amended by the PATRIOT Act of 2001, to include "terrorists" as well). Some would argue that in this case the search is not "unreasonable" and a warrant is not needed -- and further, in line with the Constitutional provision that Congress has the right to provide for "common defence", or designate representatives to do so.

Ironically, the FISA was designed to eliminate Fourth Amendment violations, and was put in place in the wake of accusations that President Richard Nixon (R) had used wiretaps to spy on political rivals. The act only allowed for warrantless wiretaps if one of the parties was "reasonably believed" to be outside the U.S.

That said, while well intentioned, perhaps the FISA leaves open the door to abuse by putting domestic surveillance mechanisms in place. While the bill criminalizes abuse, with a penalty of up to five years in jail, it has been difficult to prove abuse allegations against ranking federal officials.

That's where the FAA comes in. While officially providing yet more limitations on spying, those provisions are a smokescreen, many argue, for a key provision which grants participating telecommunications companies immunity from lawsuits about warrantless wiretaps.

President George W. Bush (R) is accused of criminally abusing the FISA, by some, using the domestic surveillance facilities to go well beyond spying on terrorists -- spying on politically motivated citizens as well. While these accusations achieved wide coverage, the actual investigation reached a dead end when the participating telecommunications companies refused to cooperate. And thanks to the FAA, they now have no fear of legal recourse for doing so.

In other words, the FAA isn't so bad in what it authorizes. Rather it is arguably dangerous as it removes transparency and accountability, when it comes to the dangerous topic of government playing "Big Brother".

II. Proposed Additions Supporting Transparency May be Voted Down

Senator Dianne Feinstein (D-Calif.) is the chair of the Committee on Intelligence and is a key proponent of renewal. She tried unsuccessfully, earlier this year, to slip through an extension until 2013. Now she's yet again battling for passage.

Supporting her is the Director of National Intelligence (DNI) James Clapper. His lawyer, Robert Litt, wrote a letter [PDF] to the intelligence committee last month stating, "The Act provides additional and critically important authority... to acquire foreign intelligence information on persons reasonably believed to be outside the U.S... We look forward to working with Congress to extend these important statutory tools."

Further the Mr. Clapper's staff are arguing to the Senate that it's impossible to release a list of the Americans monitored under FISA under the last several years -- information that could reveal signs of wrongdoing, or, alternatively, vindicate the program against such accusations.

Rather than let the facts speak for themselves, the DNI is trying to obfuscate that information, under the premise that it's too difficult to collect. Writes [PDF] his Congressional liaison, Kathleen Turner, "[It is] not reasonably possible to identify the number people located in the United States whose communications may have been reviewed under the authority."

The response was sent to Senators Ron Wyden (D-Oreg.) and Mark Udall (D-Colo.), who expressed concerns that citizens were being illegally spied upon outside the scope of the FISA, using FISA mechanism and resources.

The Obama administration has also expressed support of the FAA, and, reportedly, the work to keep the results of FISA hidden from the Senate.

Aside from the DNI's efforts to disallow the Senate from reviewing the program's actual actions, another troubling development is reported resistance to Sen. Wyden and Udall's proposed additions to the FAA.

The two Senators, both on the intelligence committee, have reportedly proposed the addition of language that further emphasizes the limitations of the FISA. For example, one paragraph reads:

In democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances.

While not exactly removing the possibility of abuse, the new language seemingly couldn't hurt, by emphasizing the legal boundaries of the controversial practice of warrantless wiretaps. But amazingly, there's reportedly hesitance to add the language to the bill, though there's no clear reason why.

The U.S. people don't get to hear the debates within the committee, so they will have to wait until the committee brings the renewal before the full Senate, in order to find out if these additions indeed made it through.

Sadly, it's pretty well only theory. I just don't really see any branch coming up and saying that right now. Mainly because if they did, you would get a sizable backlash, especially with the anniversary around the corner. Even after that, would they really want to give up what basically is a free way to spy on us? Granted, the judicial branch doesn't get much benefit, but they're not going to buck the system, when that system got them their job. I don't think change will come until people as a whole do not want it.

And most people aren't going to care, either. I say that because wiretapping doesn't directly affect you, at least you don't know it if is. TSA patdowns and scans directly affect you. They're obnoxious and they hold you up. More retape for passports, that affects you. But you never know you're being tapped, so I don't see an uproar ever coming out of it, except for the usual people who uproar about everything else.

The Patriot Act was a power grab that allowed Bush and his cronies damn near free reign to do as they so chose with little in the way of opposition. If you spoke out against it you were shouted down as not being "patriotic," and it was political suicide for any politician to speak in opposition. The Patriot Act is anything but.

Bush? Really? If you didn't notice, the ability to do warrant-less wiretaps and monitoring existed long before the Patriot Act (can you say Bill Clinton?). You will also notice the Obama admin that has the chance to dump this and take some of the teeth out of it and he wants to extend it.

This bipartisan crap is absolutely stupid. Both parties are on the same boat here. They both want more power. Turning this into a R vs. D pissing match just takes scrutiny away from the issue, where it belongs.

Neither party is interested in giving you your freedoms back. Both will slowly erode them away one piece at a time. They've both pretty much converged to the same corrupt point on the line. They just keep their little "we're different from those other guys over there" differences to make Americans feel like they have a choice. You don't. It's like cheap electronics. The same company makes 'em, they just slap a different sticker on in the end.

quote: This bipartisan crap is absolutely stupid. Both parties are on the same boat here. They both want more power.

Right. Which is why the Republicans have been fighting tooth and nail to cut over two trillion dollars in Government spending (power) out of the budget while the Democrats just want to keep the status quo.

Just to stop the spread of the news of her husband getting a Lewinsky :-)

They're all sleazes. The old time politicians (both major parties) totally ignore the Constitution and the Bill of Individual's Rights. Then again the average citizen doesn't have a clue what's in the BOR and thinks driving is a "right"..LOL. The country's going down the tubes... :-P

yes quickly hurry while nobody knows about such event. Kenyee you spilled the beans! Now you put it on the internet again! Thanks for the clarification though, none of us could connect those complicated dots

on topic again:

quote: In democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances.

I find this verbage no better for the transparency to the american people, and actually even more restrictive. Here let me translate it for dt "people think we shouldn't hide things, but we swear we will only do it if we think we should...which is always"

While imperfect there are parts that are worthwhile, I don't care if they tap overseas conversations that pass through US based phone systems. Domestic they have to have a warrant.

The difference between this and other crazy laws is that it has to be re-authorized every couple years. That was intended to keep it from becoming a permanent draconian law. The question is will that happen or will it just keep getting passed?